[Editorial Comment: Due to its large size, the HTML version of this article – this version – is published in two parts. This is part I/II. The PDF version is published in its entirety.]

A.  Introduction

On October 14, 2004 the Bundesverfassungsgericht (BVerfG – German Federal Constitutional Court) delivered a judgment which gave rise to vivid reactions in the mass media and to a dispute between the European Court of Human Rights (ECtHR) and the German Federal Constitutional Court. In interviews, members of the Strasbourg court spoke about their disappointment in the German Court’s unwillingness to implement decisions of the ECtHR while members of the German court referred to the necessity to respect national particularities. Whereas, normally, the ECtHR and the constitutional courts of the Member States of the Council of Europe are fighting side by side for human rights and, therefore, consider themselves as natural allies, this time their decisions, which seem to be incompatible, led to a dispute which attracted as much public interest as a film or theatre premiere.

B.  The Background of the Decision

In 1999, a woman gave birth to a child. The child’s mother and father put an end to their relationship several months before that date. The mother gave the child up for adoption. The child lived with foster parents from four days after its birth. These persons were willing to adopt the child. The father learned of his child’s birth and release for adoption only in October 1999. He tried to adopt the child but met difficulties as his paternity was not recognized. He obtained parental custody by order of the Wittenberg Local Court in 2001. The foster parents and the Wittenberg Youth Welfare Office, serving as the child’s official guardian, lodged an appeal upon which the Naumburg Higher Regional Court dismissed the father’s application for transfer of custody and excluded rights of access between the father and the...